2014 PLP 865 (YLR)

MANZOOR AHMAD MALIK, J.

Muhammad Rafique (appellant) was tried by the learned Sessions Judge, Mianwali in case F.I.R. No.135 dated 23-4-2009 offence under section 302, P.P.C. registered at Police Station Kundian District Mianwali for the murder of Muhammad Shahzad (deceased) son of the complainant. Vide judgment dated 19-10-2009 passed by the learned Sessions Judge, Mianwali, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death, with a further direction to pay a compensation of Rs.1,00,000 (rupees one lakh only) to the legal heirs of deceased, as provided under section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand, whereas the learned trial Court has sent Murder Reference No.454 of 2009 for confirmation or otherwise of appellant's sentence of death, as required under section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.

2. Prosecution story, as set out in F.I.R. (Exh.PF) registered on the statement of Ghulam Yaseen, complainant (P.W.6), is that he was a labourer. On the morning of occurrence i.e. 23-4-2009, the complainant along with his brother-in-law (sala) namely Muhammad Rafique son of Muhammad Siddique, caste Musalli, resident of Kundian left his home for work in forest at Kundian. Mst. Kaneez Bibi, wife of the complainant, who was unwell, went to hospital for medicine. Son of the complainant namely Muhammad Shahzad aged about 6/7 years and Muhammad Rafique (appellant), who happened to be the paternal nephew (bhatija) of the complainant and was living in the house of the complainant for the last one month, were present at home. When the complainant along with said Muhammad Rafique came back from the forest at about 11-30 a.m., the door of room was shut and nobody was present in the house. The complainant and his brother-in-law namely Muhammad Rafique opened the door of room and found Muhammad Shahzad son of the complainant lying on a cot, sufficient blood had oozed from his neck, having chain around his neck with burnt skin at many parts of body. Meanwhile Ghulam Abbas son of Ghulam Hassan, caste Arain, a neighbour also arrived there. The complainant party attended Muhammad Shahzad, who was having marks of injuries on left side of neck and a chain around his neck, had succumbed to the injuries. A blood-stained chhuri and an electric iron were also lying on the cot alongside the dead body and Muhammad Rafique (appellant) paternal nephew of the complainant was missing. The complainant strongly suspected that Muhammad Rafique (appellant) had murdered his son Muhammad Shahzad because a long standing marital dispute was going on between the parties and Muhammad Rafique (appellant) had refused to give the hand of his sister to Muhammad Hanif brother-in-law of the complainant in exchange marriage of complainant's wife. However, a month prior to the occurrence, some compromise had arrived at between the parties.

3. Abdul Ghafoor, A.S.-I. (P.W.11) was posted at Police Station Kundian. On 23-4-2009, Ghulam Yaseen, complainant (P.W.6) appeared before him and got recorded his statement on the basis whereof formal F.I.R. (Exh.PF) was registered. After registration of the case, said Investigating Officer proceeded to the place of occurrence, where he prepared injury statement (Exh.PK), inquest report (Exh.PL) of the deceased and handed over the dead body to Altaf Ullah 589/C (P.W.3) for autopsy. Then he inspected the spot and took into possession chhuri (P.4) blood-stained, electric iron (P.5) and a blood-stained cloth vide recovery memos Exh.PG, Exh.PJ and Exh.PH, respectively. After postmortem examination of the deceased, Altaf Ullah constable (P.W.3) produced before him last worn clothes of the deceased viz qameez (P.1), shalwar (P.2) and iron chain (P.3), which were taken into possession vide memo (Exh.PD). On 3-5-2009, he got inspected the place of occurrence by Muhammad Shafique, Draftsman (P.W.1), who took rough notes and on 6-5-2009, handed over scaled site plan (Exh.PA) to the I.O. On 4-5-2009, the said I.O. got issued non-bailable warrants of arrest (Exh.PB) against the appellant from the court of learned Magistrate by moving an application (Exh. PN). On 16-5-2009, he also got issued proclamation (Exh.PC) against the appellant through an application (Exh.PP). Thereafter, the I.O. got prepared challan under section 512, Cr.P.C. through the S.H.O. concerned. On 30-5-2009, the I.O. arrested the appellant and got him challaned in this case.

4. The appellant was summoned by the learned Sessions Judge, Mianwali, to face the trial. Copies of relevant documents as required under section 265-C, Code of Criminal Procedure were provided to him and formal charge under section 302, P.P.C. was framed against him on 2-9-2009, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined thirteen witnesses whereas Hidayat Ullah was summoned by the learned trial Court and his statement was recorded as CW.1. Learned Assistant District Public Prosecutor gave up P.Ws. Zaheer Ahmad and Abdul Rasheed being unnecessary and after tendering in evidence reports of Chemical Examiner (Exh.PQ & Exh.PR) and reports of Serologist (Exh.PS & Exh.PT), closed the case of prosecution vide statement dated 30-9-2009. Statement of the appellant under section 342, Code of Criminal Procedure was recorded on 2-10-2009, wherein he refuted all the allegations of the prosecution. In answer to a question as to why the case against him and why the witnesses had deposed against him, the appellant stated as under:-- "The complainant was inimical towards me/my family as we did not give hand of our sister to his Sala, namely, Muhammad Hanif. It was unseen occurrence and the complainant has planted this false case upon me. P.Ws. and complainant are related inter se and thus deposed against me." The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor produced any evidence in his defence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.

5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that admittedly it is an unwitnessed occurrence and there is no direct evidence in this case and the case of prosecution is based on circumstantial evidence, which can be categorized as evidence of wajtakkar, extra-judicial confession, abscondance and motive. So far as the evidence of wajtakkar is concerned, it is contended by learned counsel that this evidence has been furnished by Muhammad Ramzan (P.W.8) whose statement was recorded by the police on 18-5-2009 i.e. after about 25 days of the occurrence and as such, it carries no value and there is no reason as to why he did not make any statement earlier and moreover, he simply stated that the appellant was coming out of the house of Ghulam Yaseen complainant, which cannot be considered as evidence of wajtakkar because he did not notice any blood on the clothes of the appellant or anything in his hands. So far as evidence of extra judicial confession furnished by Abdul Ghafoor (P.W.9) and Muhammad Suleman (P.W.10) is concerned, learned counsel contends that both the witnesses have stated that their statements were not recorded by the police; that it is the case of both these witnesses that firstly father of the appellant came to the house of Abdul Ghafoor (P.W.9) for effecting a compromise with the complainant but Abdul Ghafoor (P.W.9) has admitted in his cross-examination that he did not inform the complainant about this happening; that he (P.W.9) has stated in his examination-in-chief that he informed the complainant about the arrival of the appellant and the complainant came along with police and arrested him but the said witness (P.W.9) was not in a position to disclose telephone number of the complainant. Learned counsel further contends that Abdul Ghafoor (P.W.9) has not stated in his statement before the learned trial Court that Muhammad Suleman (P.W.10) was present when the appellant made a confession; that the presence of Muhammad Suleman (P.W.10) in the house of Abdul Ghafoor (P.W.9) at the time of alleged confession is highly improbable as his residence is situated at a distance of 5/6 kilometers from the house of Abdul Ghafoor (P.W.9) and he (P.W.10) has admitted in his cross-examination that he has no relationship with Abdul Ghafoor (P.W.9); that both the witnesses of extra judicial confession have not stated specific date on which extra judicial confession was allegedly made by the appellant. So far as alleged abscondance of the appellant is concerned, learned counsel contends that the occurrence took place on 23-4-2009 and the appellant was arrested on 30-5-2009 i.e. just after one month and seven days of the occurrence and even the abscondeance has not been proved because Abid Hussain (P.W.2) has stated that he was entrusted with the warrants of arrest and proclamation of the appellant for execution but in his cross-examination, he (P.W.2) has admitted that the report on the reverse of warrants was made by Inayat Ullah 747/C (sic.) and Hidayat Ullah 747/C was summoned as CW.1, who admitted in his cross-examination that he never made any statement before the I.O. regarding execution of non-bailable warrants; that the appellant cannot be considered a proclaimed offender as the proclamation (Exh.PC) was got issued on 16-5-2009 whereas the appellant was arrested on 30-5-2009 and as such the statutory period of thirty days contained in section 87, Cr.P.C. had not elapsed after issuance of proclamation. So far as motive is concerned, learned counsel contends that no evidence was brought on record in respect of the motive dispute and even no witness was produced by the prosecution to prove the motive; that even if the motive is accepted as it is, there was no occasion for the appellant to stay in the house of the complainant; that it is in the statement of the complainant that his wife was unwell and she left for hospital to get medicine leaving behind Muhammad Shahzad (deceased) and the appellant but she has not been produced before the learned trial Court. So far as medical evidence is concerned, learned counsel contends that it is merely a supporting piece of evidence and nothing was recovered from the appellant; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.

6. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, vehemently opposes this appeal on the grounds that the appellant is named in the promptly lodged F.I.R.; that there was absolutely no reason for the complainant and other witnesses to falsely implicate the appellant in this case; that the prosecution case has been proved through the statement of complainant, Muhammad Ramzan (P.W.8), who is a witness of wajtakkar and the statements of Abdul Ghafoor (P.W.9) and Muhammad Suleman (P.W.10), before whom the appellant made extra-judicial confession; that the prosecution case is fully supported by the medical evidence and further corroborated by recovery of different articles from the spot and abscondance of the appellant; that the prosecution has proved the guilt of the appellant beyond any shadow of doubt and there is no merit in this appeal.

7. We have heard arguments of learned counsel for both the sides to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.

8. This incident was reported to the police on 23-4-2009 at 12.30 p.m. by Ghulam Yaseen, complainant (P.W.6) through his statement, on the basis whereof formal F.I.R. (Exh.PF) was registered. The postmortem examination on the dead body of the deceased was conducted on the same day at 3.00 p.m. The complainant in the F.I.R. has stated that on his arrival at home along with his brother-in-law namely Muhammad Rafique, they opened the door and found the dead body of Muhammad Shahzad (deceased) son of the complainant lying on a cot. The complainant has shown suspicion that his son had been murdered by the appellant and the reason behind the murder assigned by him was a long-standing marital dispute going on between the parties as Muhammad Rafique (appellant) had refused to give the hand of his sister to Muhammad Hanif brother-in-law of the complainant in exchange marriage of complainant's wife. However, a month prior to the occurrence, some compromise had arrived at between the parties. Admittedly, the complainant is not witness of any event except the motive and the case of the prosecution is based on circumstantial evidence, which can be categorized as under:- (i) Evidence of wajtakkar; (ii) Evidence of extra-judicial confession; (iii) Medical evidence; (iv) Recoveries from the spot; (v) Motive; and (vi) Abscondance.

9. Now we take up the aforementioned pieces of evidence separately. (i) Evidence of wajtakkar: So far as the evidence of wajtakkar is concerned, it is in the statement of Muhammad Ramzan (P.W. 8) that on 23-4-2009 at about 10.00/11.00 a.m. he along with Abdul Rasheed (given up P.W.) was going to the house of one Iqbal and when they reached near the house of Ghulam Yaseen, complainant, the appellant met them, who was confused and in a state of perplexity. We have noted that Muhammad Ramzan (P.W.8) and Abdul Rasheed (given up P.W.) did not notice anything special such as blood on the clothes of the appellant or anything in his hands. Moreover, it is not known as to why this witness remained mum for a period of about 25 days as his statement was recorded by the police on 18-5-2009, therefore, the evidence of wajtakkar does not advance the case of prosecution. (ii) Evidence of extra-judicial confession: So far as evidence of extra-judicial confession is concerned, we have noted that no specific date of the confession allegedly made by the appellant is mentioned in the statements of Abdul Ghafoor (P.W.9) and Muhammad Suleman (P.W.10). Both these witnesses have stated that their statements were not recorded by the police. It is the case of both these witnesses that firstly Muhammad Siddique, father of the appellant came to the house of Abdul Ghafoor (P.W.9) for effecting a compromise with the complainant. Abdul Ghafoor (P.W.9) has admitted in his cross-examination that he did not inform the complainant about the visit of Muhammad Siddique to his home. So far as the visit of the appellant to the house of Abdul Ghafoor is concerned, he (P.W.9) has not stated that any other witness was present at that time. The said witness (P.W.9) has stated in his examination-in-chief that he telephonically informed the complainant about the arrival of the appellant and then the complainant came along with police and got arrested the appellant but during cross-examination, Abdul Ghafoor (P.W.9) could not tell the telephone number of the complainant. The other witness namely Muhammad Suleman (P.W.10) has not been able to give any reason for his presence at the house of Abdul Ghafoor (P.W.9) as his house is situated at a distance of 4/5 kilometers from the house of Abdul Ghafoor (P.W.9) and as per admission of this witness (P.W.10) in his cross-examination, he had no relations with Abdul Ghafoor (P.W.9). Even otherwise, it is not understandable as to why the appellant would make such confession before these witnesses. Extra-judicial confession is always considered a weak type of evidence. The question of evidentiary value of the extra-judicial confession came up for consideration before the august Supreme Court of Pakistan in the case reported as "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan has been pleased to lay emphasis as under:-- "17. ...This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions starting from Ahmad v. The Crown PLD 1951 FC 103-107 upto the latest. Extra-judicial confession has always been taken with a pinch of salt. In Ahmad v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to 'satisfy itself fully that the confession cannot but be true'. As, an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.

18. It has been further held that the status of the person before whom the extra-judicial confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.

19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.

20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confidant as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confidant. In the instant case the position of the witnesses before whom extra-judicial confession is made is such that they are neither the close confidant of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.

21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought firstly, when a person is sufficiently trapped and secondly, from one who is authoritative, socially or officially

22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confession. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all, is the position or authority held by the witness". (emphasis supplied) The above view has been reiterated in the case reported as "Tahir Javed v. The State" (2009 SCMR 166), wherein, at page 170, the august Supreme Court of Pakistan, has been pleased to observe as under:-- "

10. It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:- (1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683, (4) Sarfraz Khan v. The State and others 1996 SCMR 188." In the light of above discussion, we are of the view that the evidence of extra-judicial confession in the instant case is not worthy of reliance. (iii) Medical evidence: So far as the medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence and merely on the basis of medical evidence, conviction cannot be maintained. It can only be helpful if other evidence inspires confidence, which is not the situation in this case. (iv) Recoveries from the spot: After the occurrence, Abdul Ghafoor, A.S.-I. (P.W.11) inspected the spot and took into possession blood-stained chhurri (P.4), electric iron (P.5) and a blood stained cloth (P.6) vide recovery memos Exh.PG, Exh.PJ and Exh.PH, respectively. The said recoveries are not helpful for the prosecution as the same were taken into possession from the spot and nothing was recovered at the instance of the appellant. (v) Motive: So far as the motive is concerned, it was alleged in the F.I.R. and disclosed before the learned trial Court that a marital dispute was going on between the parties as Muhammad Rafique (appellant) had refused to give the hand of his sister to Muhammad Hanif brother-in-law of the complainant in exchange marriage of complainant's wife. The complainant himself admitted in the F.I.R. that the matter had been patched up and nothing has been brought on record as to why the appellant was opposing this rishta. It is in the statement of the complainant that his wife was unwell and she left for hospital to get medicine leaving behind Muhammad Shahzad (deceased) and the appellant but she has not been brought in the witness box. It does not appeal to the mind of a prudent man that the complainant and his wife would leave their son along with a person (appellant), who, according to them, was inimical to complainant's side. Moreover, the motive is a corroborative piece of evidence and conviction cannot be maintained only on the basis of motive. (vi) Abscondance: So far as alleged abscondance of the appellant is concerned, we have noted that the occurrence took place on 23-4-2009 and the appellant was arrested on 30-5-2009 i.e. just after one month and seven days of the occurrence. Abid Hussain (P.W.2) has stated in his examination-in-chief that he was entrusted with the warrants of arrest and proclamation of the appellant for execution but in his cross-examination, he (P.W.2) has admitted that the report on the reverse of warrants was made by Inayat Ullah 747/C (sic.). The said Hidayat Ullah 747/C was summoned by the learned trial Court and his statement was recorded as CW.1, who admitted in his cross-examination that he never made any statement before the I.O. regarding execution of non-bailable warrants. Moreover, Abdul Ghafoor A.S.-I. (P.W.11) stated in his examination-in-chief that he obtained the proclamation (Exh.PC) on 16-5-2009 whereas the appellant was arrested in this case on 30-5-2009 and as such the statutory period of thirty days had not elapsed after issuance of proclamation, therefore, the appellant cannot be considered a proclaimed offender. In the circumstances the evidence of abscondance advanced by the prosecution is hit by the statutory provisions contained in section 87, Code of Criminal Procedure.

10. Sequel of the above discussion is that the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:-- " It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

11. For the foregoing reasons, this appeal is allowed, conviction and sentence awarded to Muhammad Rafique (appellant) vide judgment dated 19-10-2009 passed by the learned Sessions Judge, Mianwali are set aside and the appellant is acquitted of the charge of murder of Muhammad Shahzad (deceased) while extending him benefit of doubt. He is in jail and shall be released forthwith if not required to be detained in any other case.

12. Murder Reference No.454 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Rafique (convict) is NOT CONFIRMED. HBT/M-211/L Appeal allowed.